Scarano v White
[2017] NZHC 443
•15 March 2017
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CIV-2015-419-140 [2017] NZHC 443
IN THE MATTER of an application under the Declaratory
Judgments Act 1908
BETWEEN
VINCENT PETER SCARANO Plaintiff
AND
BRENDA MARY WHITE First Defendant
KENNETH ANDREW WHITE Second Defendant
Hearing: 1 March 2017 Appearances:
R P Sutton for the Plaintiff
No appearance by or on behalf of the First and Second
DefendantsJudgment:
15 March 2017
JUDGMENT OF GORDON J
This judgment was delivered by me on 15 March 2017 at 3 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors: Swarbricks, Te Awamutu
Counsel: R P Sutton, Hamilton
SCARANO v WHITE [2017] NZHC 443 [15 March 2017]
Introduction
[1] Mr Scarano seeks a declaration pursuant to the Declaratory Judgments Act
1908 that he is not a liable parent for the purposes of the Child Support Act 1991.1
The first defendant, Mrs White, is his former wife. She is now married to the second defendant, Mr White. Neither of the defendants has taken any steps in the proceedings and accordingly the hearing proceeded by way of formal proof.
Background
[2] Mr Scarano and Mrs White met in 1982 and were married on 30 July 1984. They lived in Australia. Between 1985 and 1987, the couple made a number of attempts to conceive through in vitro fertilisation procedures; however, these attempts were unsuccessful.
[3] Mr Scarano says that in 1987, Mrs White contacted Mr White and Mr White’s then-wife, who were living in New Zealand. She enquired whether the couple would be willing to conceive a baby on behalf of Mr Scarano and herself and the couple agreed. Mr Scarano says he was not aware of his wife’s intentions and was only informed after the arrangements had been confirmed.
[4] Mr White and his wife were successful in conceiving a child and travelled to Australia for the child’s birth in 1988. They checked into a birthing unit at the local hospital under the names of Vincent and Brenda Scarano. Maria Roseanna Scarano (Roseanna) was born on 9 October 1988. Mr Scarano is recorded on the birth certificate as Roseanna’s father. However he says that he was not present at the birth and did not sign the certificate. He believes that his signature was forged by
Mrs White.2
[5] A second child, Alanah Mia Scarano, was conceived by similar means and was born in Australia on 4 April 1991. Mr Scarano’s name is recorded on Alanah’s birth certificate. However, unlike Roseanna’s birth certificate, it does not bear his
signature.
1 Initially, Mr Scarano sought a second declaration that he was not the biological father of the children. However, this aspect of his claim was abandoned in the course of the hearing.
2 For the avoidance of doubt ‘Mrs White’ here refers to the first defendant.
[6] Mr Scarano and Mrs White separated suddenly in 2001. Mr Scarano says that he came home from work one day to find the house empty. He later discovered that his former wife had moved to New Zealand with the two children and had subsequently married Mr White. Mr Scarano has not had any contact with Roseanna or Alanah since 2001.
[7] Mr Scarano remarried in 2004. A few years later in 2011, he was diagnosed as suffering from systemic lupus erythematosus. He is now unable to work and is frequently hospitalised. He receives an invalid’s pension.
[8] In March 2013, Mr Scarano received a letter from the Australian Tax Office advising that he owed more than $360,000 in child support for Roseanna. This was the first time he had been contacted regarding child support. By mid-2014 the debt, together with penalties and interest, had increased to $453,000. Presumably the sum has continued to rise since that time. He says that he has no means to pay the debt.
[9] Mr Scarano says that he contacted Mrs White to request a DNA sample from Roseanna and Alanah to prove that he was not their biological father. However, Mrs White informed him that the girls did not consent and no test has taken place.
What is a “liable parent”?
[10] Section 18(1) of the Child Support Act provides that a person who is the liable parent of a child is liable to make payments of child support in respect of that child. The meaning of the term “parent” is set out in s 7(1):
7 Meaning of parent
(1) For the purposes of this Act, a person is a parent of a child if—
(a) the person’s name is entered in the Register of Births pursuant to the Births, Deaths, Marriages and Relationships Registration Act 1995, or is entered in a register of births or parentage information kept under the law of any overseas jurisdiction, as a parent of the child; or
(b) the person is or was a party to a legal marriage and the child was conceived by or born to the person, or the other party to the marriage, during the legal marriage; or
(c) the person adopted the child under the Adoption Act 1955 or under an adoption to which section 17 of that Act applies and that adoption order has not been discharged; or
(d) a New Zealand court, or a court or public authority of any overseas jurisdiction, has at any time found that the person is a parent of the child, and the finding has not been cancelled or set aside; or
(e) the person has, at any time in any proceeding before any court in New Zealand, or before any court or public authority in an overseas jurisdiction, or in writing signed by the person, acknowledged that he or she is a parent of the child and a court has not made a finding of paternity of the child that is contrary of that acknowledgement; or
(f) a court has, under the Family Proceedings Act 1980, made a paternity order against the person in respect of the child; or
(g) the person is the natural mother of the child; or
(h) the person has been declared to be a step-parent of the child by a Family Court under section 99; or
(i) a New Zealand court, or a court or public authority of any overseas jurisdiction, has appointed the person to be a guardian of the child, or has declared the person to be a guardian of the child, by reason of being the father of the child, and that appointment has not been cancelled or set aside.
[11] The section goes on:
(2) Notwithstanding subsection (1), where the Commissioner is satisfied that a person—
(a) is not, despite being a person to whom that subsection applies, a parent of a particular child; and
(b) has not been declared to be a step-parent of that child under section 99,—
that person shall not be a parent of the child for the purposes of this
Act.
(3) On being requested to make a determination under subsection (2), the Commissioner may require the production of such evidence as the Commissioner, in his or her discretion, considers appropriate.
(4) Where—
(a) a child is conceived as a result of any AHR procedure to which Part 2 of the Status of Children Act 1969 applies; and
(b) a person involved in that procedure is not the mother of the child, or a person who has the rights and liabilities of a parent of the child, in terMrs of that Act,—
that person shall not be a parent of the child for the purposes of this
Act.
[12] Section 17 of the Child Support Act provides that the Commissioner must determine the liable parents and receiving carers of each qualifying child.3 A parent of a qualifying child will be a liable parent of that child if the parent’s income percentage is greater than or equal to their care cost percentage for that child.4 The effect of this provision, broadly speaking, is that the costs of caring for the child are divided proportionally between the child’s parents according to the parents’ respective means. The receiving carer contributes directly to those costs, for example by providing food and shelter for the child. The liable parent contributes indirectly to those costs, by paying child support to the receiving carer.5
[13] The liability to pay child support is determined in accordance with a formula assessment. Any parent or carer of a qualifying child may apply to the Commissioner for a formula assessment of child support payable in respect of the child.6 A person who is a carer of a qualifying child and who is a social security beneficiary must apply for a formula assessment.7 Upon receipt of an application for a formula assessment, the Commissioner must ascertain:8
(a) Who the liable parent or parents, and who the receiving carer or carers, of the qualifying child are; and
(b)The annual amount of child support payable by any liable parent in respect of each qualifying child identified in the application; and
3 Child Support Act 1991, s 17(1).
4 Child Support Act 1991, s 17(2).
5 The liable parent may in some circumstances make a direct contribution to the costs of care, particularly where the liable parent shares custody of the child. In that case, those contributions will be taken into account when determining the amount of child support that is to be paid to the receiving carer.
6 Child Support Act, s 8(1).
7 Child Support Act, s 9. The statutory regime which determines whether a social security beneficiary is required to make an application for a formula assessment is significantly more complex than is portrayed here; however, the details of that regime are not relevant for present purposes and so have been omitted from this judgment.
8 See Child Support Act, s 13(1).
(c) The annual rate of child support payable by any liable parent in
respect of all the liable parent’s qualifying children; and
(d) The amount payable in respect of each receiving carer; and
(e) The date on which the liability of a liable parent to pay child support began or begins.
[14] In general, the liability of a liable parent to pay child support under a formula assessment will begin on the day on which the properly completed application for that formula assessment is received by the Commissioner.9
Discussion
[15] The jurisdiction of the High Court to make a declaratory judgment is set out in ss 2 and 3 of the Declaratory Judgments Act. Those sections provide:
2 Declaratory judgments
No action or proceeding in the High Court shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the said Court may make binding declarations of right, whether any consequential relief is or could be claimed or not.
3 Declaratory orders on originating summons
Where any person has done or desires to do any act the validity, legality, or effect of which depends on the construction or validity of any statute, or any regulation made by the Governor-General in Council under statutory authority, or any bylaw made by a local authority, or any deed, will, or document of title, or any agreement made or evidenced by writing, or any memorandum or articles of association of any company or body corporate, or any instrument prescribing the powers of any company or body corporate; or
Where any person claiMrs to have acquired any right under any such statute, regulation, bylaw, deed, will, document of title, agreement, memorandum, articles, or instrument, or to be in any other manner interested in the construction or validity thereof,—
such person may apply to the High Court by originating summons for a declaratory order determining any question as to the construction or validity of such statute, regulation, bylaw, deed, will,
9 Child Support Act, s 19(1).
document of title, agreement, memorandum, articles, or instrument, or any part thereof.
[16] Mr Scarano does not seek a declaratory order “determining any question as to the construction or validity” of the Child Support Act. Rather, he seeks a declaration of mixed fact and law: that although his name is entered in an overseas register of births as a parent of Roseanna and Alanah,10 he is not a parent of Roseanna or Alanah for the purposes of the Child Support Act.11 Accordingly, Mr Scarano relies upon the broad jurisdiction which is affirmed in s 2 of the Declaratory Judgments Act. In Re Chase, Cooke P held:12
As to jurisdiction, s 2 of the Declaratory Judgments Act is amply wide and in my view should not be restricted by interpretation: provided always that it is read together with s 10, which expressly states that the declaratory jurisdiction is discretionary “and the said Court may, on any grounds which it deems sufficient, refuse to give or make any such judgment or order”. Section 2, while modelled on an English Rule of Court (now Order 15, r 16), has direct statutory force in New Zealand. There is even less reason for whittling it down here than might arguably apply to the English Rule.
[17] Section 10 of the Declaratory Judgments Act remains in force. The full section provides:
10 Jurisdiction discretionary
The jurisdiction hereby conferred upon the High Court to give or make a declaratory judgment or order shall be discretionary, and the said Court may, on any grounds which it deems sufficient, refuse to give or make any such judgment or order.
[18] There are a number of factors that will be relevant to the exercise of the Court’s discretion under s 10. One factor which is particularly relevant to the present case is whether there is an alternative dispute resolution procedure which would provide a more appropriate means of achieving the desired outcome. Mr Sutton, who appeared on behalf of Mr Scarano, accepted that no relief could be forthcoming in the event that the Child Support Act provided a statutory mechanism for resolution of the present dispute. However, he submitted that no such mechanism was available
under the Act.
10 Child Support Act, s 7(1)(a).
11 Mr Scarano swore a second affidavit dated 28 February 2017 in which he deposed that he did not meet any of the other criteria set out in s 7(1) of the Child Support Act.
12 Re Chase [1989] 1 NZLR 325 (CA) at 333.
[19] I am satisfied that the Child Support Act does provide a mechanism for resolving the present dispute.
[20] Section 90(1)(ba) of the Child Support Act provides that an appealable decision includes “a decision as to whether a particular child is or is not a dependent child of a person”. The term “dependent child” is not defined elsewhere in the Act; nor does the Act provide any means of determining whether a child is or is not a dependent child of a person. In those circumstances, I conclude that “a decision as to whether a particular child is or is not a dependent child of a person” must encompass a decision as to whether a particular person is the parent of a dependent child, within the terms of s 7.
[21] Alternatively, s 90(1)(a) provides that an appealable decision includes “a decision to make, or refuse to make, a formula assessment of child support”. As noted above,13 one of the steps which the Commissioner must undertake in order to make a formula assessment is determining the identity of the liable parent/s and receiving carer/s. Therefore, in my view, this determination must also encompass a decision as to whether a particular person is the parent of a child, within the terms of s 7.
[22] A person who is affected by an appealable decision may make an objection to the Commissioner.14 The Commissioner will then determine whether the objection should be allowed.15 If the objection is disallowed, the objector is entitled to appeal to the Family Court against that decision.16 In general, the obligation to pay child support will continue throughout the appeal process, in accordance with s 95:
95 Obligation to pay financial support where objection made
(1) The obligation to pay, and the right of the Commissioner to receive and recover, any child support or domestic maintenance shall not be suspended by the making of any objection under this Part.
(2) Subsection (1) does not apply in relation to a person if—
13 At [13](a)].
14 Child Support Act, s 90(2).
15 Child Support Act, s 93(a).
16 Child Support Act, s 102(1).
(a) the person has made an appeal under section 102 in relation to a child; and
(b) a ground of the appeal is that the person was not a parent of the child; and
(c) there is not a final decision of a court determining that ground of appeal.
…
[23] The terms of s 95(2)(b) further reinforce the conclusion that it is possible to challenge a decision of the Commissioner on the basis that the person is not a parent of the child.
[24] Mr Scarano may face an obstacle in that any objection to an appealable decision must be delivered or posted to the Commissioner within 28 days after the date on which notice of the decision or assessment objected to was given by the Commissioner.17 It is not clear whether Mr Scarano has received formal notice of the assessment against him in accordance with s 88 of the Child Support Act. However, in his affidavit dated 14 October 2015, Mr Scarano states that he was informed of his liability to pay child support in 2013. It seems likely or at least possible that he is now out of time to file an objection to the Commissioner’s
decision.
[25] A notice of objection that is filed out of time will be of no effect unless the Commissioner in her discretion determines to accept the notice.18 However, the decision whether to accept a notice of objection filed out of time is amenable to judicial review. Accordingly, even if Mr Scarano is out of time, there are further avenues available to him.
[26] In my view, the existence of a statutory dispute resolution process is a factor which strongly counts against the grant of a declaration in this case.
[27] Another relevant consideration is that the declaration sought by Mr Scarano would have no direct legal effect upon his liability to pay child support. The
17 Child Support Act, s 92(1).
18 Child Support Act, s 92(2).
Commissioner’s assessment of his liability will stand as it is, unless Mr Scarano files a notice of objection in accordance with the procedure noted above. Alternatively, a person who has been assessed can make an application for a departure from the formula assessment of child support to the Commissioner or the Family Court. However, an application to depart from a formula assessment may only be granted if one of the grounds set out in s 105(2) of the Child Support Act is met. That section relevantly provides:
(2) For the purposes of subsection (1)(a), the grounds for departure are as follows:
(a) that, by virtue of special circumstances, the capacity of either parent to provide financial support for the child is significantly reduced because of—
(i) the duty of the parent to maintain any other child or another person; or
(ii) special needs of any other child or another person that the parent has a duty to maintain; or
(iii) commitments of the parent necessary to enable the parent to support—
(A) himself or herself; or
(B) any other child or another person whom the parent has a duty to maintain; or
(b) that, in the special circumstances of the case, the costs of maintaining the child are significantly affected because—
(i) of high costs incurred by a parent or a receiving carer in enabling a parent or receiving carer to have contact with the child; or
(ii) of special needs of the child; or
(iii) the child is being cared for, educated, or trained in the manner that was expected by either of his or her parents; or
(c) that, by virtue of special circumstances, application in relation to the child of the provisions of this Act relating to formula assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child because of—
(i) the income, earning capacity, property, and financial resources of either parent or the child; or
(ii) any payments, and any transfer or settlement of property, previously made (whether under this Act, the Property (Relationships) Act 1976 or otherwise) by the liable parent or a receiving carer to the child, or to any other person for the benefit of the child; or
(iii) an entitlement of the liable parent or receiving carer to the continued occupancy of a property in which the liable parent or receiving carer has a financial interest; or
Re-establishment costs situation if income increases
(d) that the application in relation to the child of the provisions of this Act relating to formula assessment of child support would result in an unjust and inequitable determination of the level of child support to be provided by the liable parent for the child in respect of a child support year because—
(i) the adjusted taxable income of a parent of the child for the child support year includes income from relevant additional work (see subsections (3A) to
3(C)); and
(ii) some or all of the income from relevant additional work has been used, or will be used, by the parent to meet, wholly or partly, actual and reasonable costs incurred to re-establish hiMrself or herself, and any child or other person that he or she has a duty to maintain, after the child’s parents ceased to live together in a marriage, civil union, or de facto relationship; or
Offsetting of liabilities situation
(e) that it would be just and equitable to offset one liability against another, if 2 persons are each liable to pay in respect of the other an amount of child support under a formula assessment (whether or not those amounts have become due and payable).
[28] As will be evident from the extract set out above, Mr Scarano’s relationship to Roseanna and/or Alanah is not relevant to the issues which must be determined prior to making an order for departure from a formula assessment. However, that does not deprive him of the other remedies available under the Child Support Act, as identified above.
[29] There is one final consideration which, in my view, is relevant to the outcome of this case.
[30] Section 7(1)(a) of the Child Support Act provides that a person will be a parent of a child if the person’s name is entered in a register of births, in New Zealand or in any overseas jurisdiction. The primacy of this factor within the section is not a coincidence. One of the purposes of maintaining a register of births is to provide a definitive record of matters such as parentage.19 Section 71 of the Births, Deaths, Marriages, and Relationships Registration Act 1995 accordingly provides:
71 Certificates to be prima facie evidence
A birth … certificate shall in any proceedings be received as prima
facie evidence of the truth of the information it contains.
[31] Roseanna and Alanah were born in New South Wales. Section 49 of the
Births, Deaths and Marriages Registration Act 1995 (NSW) similarly provides:
49 Issue of certificate
(1) On completing a search of the Register, the Registrar may issue a certificate:
(a) certifying particulars contained in any entry, or
(b) certifying that no entry was located in the Register about the relevant registrable event.
(2) A certificate under subsection (1)(a) is admissible in legal proceedings as evidence of:
(a) the entry to which the certificate relates, and
(b) the facts recorded in the entry.
…
[32] In my view, the courts should exercise caution before deciding to disregard the information provided on a birth certificate in favour of evidence provided by a plaintiff, particularly where, as here, there are statutory processes which permit correction of the register.20 If a plaintiff believes that the information recorded in a
births register is incorrect, then he or she should take appropriate steps to correct that
19 See Births, Deaths, Marriages, and Relationships Registration Act 1995, s 1A(1)(a)(ii).
20 Section 45(1)(b) of the Births, Deaths and Marriages Registration Act 1995 (NSW) provides that the Registrar may correct the Register to bring an entry about a particular registrable event into conformity with the most reliable information available to the Registrar of the registrable event. Section 56(1) provides that a person who is dissatisfied with a decision of the Registrar made in the exercise of powers under the Act may apply to the Civil and Administrative Tribunal for an administrative review of that decision.
information. The integrity of the register will be undermined if plaintiffs can simply argue that the register is incorrect and should be disregarded for the purposes of deciding an individual case. That is not to say, of course, that a court should completely abdicate its jurisdiction in this area. However, it is a relevant factor which should be taken into account when deciding whether to grant the declaration sought by Mr Scarano.
Conclusion
[33] I decline to make the declaratory judgment sought.
Gordon J
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